Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.
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Fiona is an 82-year-old woman who resides in a residential aged care facility ("RACF") at regional NSW. Fiona is reported to live with a diagnosis of dementia. Fiona has a daughter, Debbie.
Fiona's RACF is operated by HammondCare (ACN 000 026 219). HammondCare is a company limited by guarantee under the Corporations Act 2001 (Cth).
On 21 November 2025, the Tribunal received a financial management application relating to Fiona. The applicant is HammondCare. In response to enquiries made by the Tribunal's Registry, the Applicant confirmed that HammondCare is a separate legal entity to HammondCare Health and Hospitals Limited.
On 2 February 2026, the Tribunal made directions in Chambers for the provision of written submissions on the issue of HammondCare's standing. The matter was listed for a Directions Hearing to determine the discrete issue of HammondCare's standing to make the application.
The Directions Hearing was listed before the Tribunal on 17 February 2025, and conducted remotely from the Tribunal's Sydney Registry. The Directions Hearing was attended by a representative from HammondCare, and Ian Miller ("Ian") and Justin Roberts ("Justin"), solicitors engaged by HammondCare.
Fiona did not participate in the Directions Hearing. Having regard to the nature of Fiona's asserted cognitive difficulties, and the nature of the application before the Tribunal at the Directions Hearing, the Tribunal was satisfied that proceeding with the Directions Hearing in Fiona's absence would be consistent with her best interests. It is anticipated, however, that arrangements will be made for Fiona to participate in the substantive Hearing if she is capable of doing so.
The Tribunal was provided with an "Authority to Act" from the Chief Financial Officer at HammondCare, granting authority to Ian or any delegate employee of Ian's firm to act on HammondCare's behalf in the proceedings.
The Tribunal was required to consider the following issues:
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(1) Should leave be granted for HammondCare to be legally represented in the proceedings?
(2) Is HammondCare a "person" who could be considered to have standing to bring an application under the Guardianship Act1987 (NSW)?
(3) Does HammondCare have standing to bring the application currently before the Tribunal?
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For the reasons that follow, the Tribunal decided:
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(1) To grant leave for HammondCare to be legally represented in the proceedings.
(2) That HammondCare is a "person" who could be considered to have standing to bring an application under the Guardianship Act.
(3) That HammondCare has standing to bring the current application.
[6]
Should leave be granted for HammondCare to be legally represented in the proceedings?
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Each party to proceedings in the Tribunal is responsible for their own case and is not entitled to be represented by any other person: s 45(1)(a) of the Civil and Administrative Tribunal Act2013 (NSW). A party may be legally represented by an Australian legal practitioner if the Tribunal grants leave to a particular legal practitioner or to any legal practitioner: Civil and Administrative Tribunal Act, s 45(1)(b). The Tribunal has discretion as to whether it will grant leave, and may refuse or revoke leave: Civil and Administrative Tribunal Act, s 45(2). The Guardianship DivisionGuideline on Representation, provides guidance as to the factors that may be considered by the Tribunal when determining whether to grant leave.
As discussed elsewhere in these Reasons for Decision, HammondCare is a company limited by guarantee. HammondCare, as a separate legal entity, is incapable of conducting its own case and must rely on another, natural, person to conduct its case on its behalf.
There is evidence before the Tribunal indicating that the legal representatives appearing on behalf of HammondCare have been duly authorised by HammondCare's Chief Financial Officer to act on HammondCare's behalf. The material provided to the Tribunal, including the oral submissions made at Hearing, evidences that such representatives have an appropriate understanding of the issues to be determined by the Tribunal, and the subject matter of the application.
After considering the matters identified in Paragraph 19 of the Guardianship Division Guideline on Representation, the Tribunal was ultimately satisfied that permitting HammondCare to be legally represented in the proceedings would be appropriate and consistent with the Tribunal's guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Accordingly, the Tribunal granted leave for HammondCare to be legally represented in the proceedings.
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Is HammondCare a "person" who could be considered to have standing to bring an application under the Guardianship Act?
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In support of the application the Tribunal was provided with a number of documents, including:
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(1) An Australian Securities and Investments Commission ("ASIC") search demonstrating that HammondCare is a registered company;
(2) An extract from the Australian Charities and Not for Profits Commission ("ACNC") demonstrating that HammondCare is a registered charity; and
(3) A copy of HammondCare's constitution.
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In written submissions provided to the Tribunal, HammondCare references the definition of a "person" under the Interpretation Act1987 (NSW) which includes "an individual, a corporation and a body corporate or politic". Although HammondCare have erroneously referenced s 21 of the Interpretation Act, the same definition is provided for in Sch 4 of the Interpretation Act.
The Tribunal has previously considered the issue of whether a corporation may appropriately be considered to be a "person" for the purpose of having standing to bring an application before the Tribunal, and has determined, in accordance with Sch 4 of the Interpretation Act (and previously, under s 21 of the Interpretation Act) that a corporation may be a "person" for such purposes: see, for example, QVC[2017] NSWCATGD 20; EBI[2017] NSWCATGD 6; Carl (a pseudonym)[2024] NSWCATGD 25. The Tribunal agrees with this interpretation.
HammondCare's Constitution, at Paragraph 4, identifies the company's objects as follows:
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"a. to care for and support older people, including the provision of residential and non-residential care;
b. to promote aged care through education, research and training;
c. to care for and support any other person in need; and
d. in doing so, to promote the Christian gospel particularly through benevolent or charitable outreach;
e. such acts as are incidental and conductive to the attainment of these objects; and
f. in pursuit of those objects, the company may do all or any of the things authorised by the Corporations Act."
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Furthermore, Paragraph 5 of HammondCare's constitution prohibits the application of income and property for any purpose, including payment to members and directors, for any purpose other than furtherance of the company's objects.
The Tribunal is satisfied that HammondCare is a "person" for the purpose of considering whether HammondCare may have standing to bring an application under the Guardianship Act. Having regard to HammondCare's objects, as identified in its constitution, HammondCare may be considered to have a genuine concern for the welfare of its residents.
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Does HammondCare have standing to bring the application currently before the Tribunal?
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An application may only be considered by the Tribunal if the applicant has standing to make the application. If the Tribunal is not satisfied that the applicant has standing, the application must be dismissed.
HammondCare has standing to bring the application if, in the opinion of the Tribunal, it has a genuine concern for the welfare of the person who is the subject of the application: Guardianship Act[2], s 25I(1)(b).
The genuine concern test is well-settled. The leading cases of ACJ[2007] NSWGT 15 and QAG[2007] NSWGT 12 identify that a genuine concern for the welfare of a person requires:
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(1) that the applicant is bringing to the attention of the Tribunal a fact situation in which the subject person's interests may call for intervention by the Tribunal;
(2) that the applicant is sincere in seeing the situation as one that may call for the intervention of the Tribunal in the interests of the person; and
(3) that the application is motivated by a desire to advance the welfare of the person. The interests of the person must be the primary motivation for the application.
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A non-exhaustive list of factors that may be relevant to considering whether a person has a genuine concern includes:
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(1) How the applicant explains the reasons for the application and the kind of orders sought in the application and in other relevant documents and evidence.
(2) Has the applicant taken any reasonable steps to clarify and resolve the situation before bringing it to the Tribunal?
(3) The relationship of the applicant and the person subject of the application.
(4) Does the applicant have a conflict of interest? Is this conflict more apparent than real? What is the nature of any conflict of interest? Does the applicant acknowledge the conflict? How does the applicant reconcile or propose to manage the conflict?
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Has HammondCare demonstrated a genuine concern for Fiona's welfare?
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The Tribunal was provided with a "Pre-Admission Agreement" dated 31 January 2023 in which Debbie is identified as Fiona's "representative", and under which it appears that Debbie has executed the agreement on Fiona's behalf. There is no evidence before the Tribunal as to any authority Debbie may have acted under in signing the agreement (namely, there is no evidence that Debbie has been appointed as an attorney under an Enduring Power of Attorney, and there has never been a financial management order in place with respect to the management of Fiona's affairs).
The application was made to the Tribunal in circumstances where HammondCare alleges that Fiona's accommodation costs and other expenses have not been paid over an extended period of time, and that attempts to resolve the issue with Debbie have, to date, been unsuccessful. Despite the application referring to Fiona being in a respite placement, at the Directions Hearing the Tribunal was informed that Fiona is subject to a permanent placement at HammondCare.
The Tribunal was provided a client statement, dated 16 February 2026, which identifies that Fiona owes a balance of $72,339.28 to HammondCare.
The Tribunal noted the provisions of r 149-60 of the Aged Care Rules 2025 (Cth) which provides for security of tenure, and relevantly identifies that a resident may not be asked to leave an approved residential care home for non-payment of fees unless the non-payment of fees is outstanding for more than 42 days for a reason within the resident's control and the provider has ensured that there is alternative suitable accommodation for the resident. In circumstances where HammondCare assert that Fiona is incapable of managing her affairs, it appears to be tacitly conceded by the Applicant that the non-payment of fees is due to circumstances that are not within Fiona's control. Accordingly, it would appear that the Aged Care Rules would operate to prevent Fiona being exited from her accommodation even if her significant debt remained unpaid.
The Tribunal referred the applicant to the various limbs of the genuine concern test and observed that on the current evidence it may be open to the Tribunal to find that the primary motivation in pursuing the application was to recover its outstanding fees rather than to advance Fiona's welfare. The Tribunal invited submissions from HammondCare on this issue.
In response to the Tribunal's observations (and during the course of discussion with the Presiding Member), the Applicant made submissions to the following effect:
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(1) The likelihood of recovery of the outstanding fees is low. Consideration may be given by HammondCare to writing off Fiona's outstanding debt.
(2) Fiona is in receipt of an Aged Pension. The fact that her pension funds are not being applied for payment of her accommodation expenses or other financial needs raises concerns about possible mismanagement of Fiona's affairs through current informal means.
(3) Fiona has no access to discretionary funds. Expenses such as pharmacy expenses, hairdressing and other comfort needs are currently met by HammondCare on Fiona's behalf. HammondCare assert that these arrangements are not sustainable, and that it is important that Fiona's available funds are able to be applied to improve her quality of life.
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On the face of the material available to the Tribunal, the Applicant is bringing to the Tribunal a factual scenario which may call for the Tribunal's intervention. Fiona does not have access to her own funds, and it appears that Fiona's available funds are not being applied for her benefit. This raises concerns about Fiona's vulnerability to exploitation. The Applicant appears to be sincere in seeing the matter as a matter that may warrant the Tribunal's intervention.
The Applicant has attempted to resolve these matters over an extended period of time, but informal measures have not been capable of resolving the identified issues.
Having regard to the concessions made by the Applicant that the likelihood of recovery of funds is slim, and that consideration may be given to writing off Fiona's debt, the Tribunal is satisfied that, although perhaps partially motivated by a desire to recover money owing to them, the Applicant's primary motivation in seeking the appointment of a financial manager is to promote Fiona's welfare and interests. This is consistent with HammondCare's charitable objects, as identified in its constitution.
For these reasons the Tribunal is satisfied that HammondCare has demonstrated a genuine concern, and that HammondCare has standing to bring the current application.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
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[1] In Carl (a pseudonym) [2024] NSWCATGD 25 the Tribunal considered the issue of standing for HammondCare Health and Hospitals Limited. No such determinations have been made with respect to HammondCare.
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[2] Note that in the context of an application for a guardianship order the test is framed in identical terms pursuant to s9(1)(d) Guardianship Act 1987.